Cheburashkina v. Canada (Minister
of Citizenship and Immigration)
of Citizenship and Immigration)
Between
Liudmila Cheburashkina, Applicant, and
The Minister of Citizenship and Immigration, Respondent
And between
Vladislav Cheburashkin, Applicant, and
The Minister of Citizenship and Immigration, Respondent
Liudmila Cheburashkina, Applicant, and
The Minister of Citizenship and Immigration, Respondent
And between
Vladislav Cheburashkin, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2014] F.C.J. No. 979
2014 FC 847
Dockets: T-89-14, T-91-14
Federal Court
Toronto, Ontario
Diner J.
Heard: August 18, 2014.
Judgment: September 10, 2014.
Dockets: T-89-14, T-91-14
Federal Court
Toronto, Ontario
Diner J.
Heard: August 18, 2014.
Judgment: September 10, 2014.
(51 paras.)
JUDGMENT AND REASONS
· DINER J.:--
I. Overview
1 This
is an application under s.14(5) of the Citizenship Act, RSC 1985, c C-29 [Act]
and s. 21 of the Federal Courts Act for judicial review of the November 27, 2013 decisions of
Citizenship Judge Babcock [Judge], which found that the Applicants did not
accumulate the requisite days of residence required for a grant of citizenship
in accordance with s. 5(1)(c) of the Act.
2 While
the two matters were filed separately, given the almost identical facts, common
dates of citizenship filings and of the Judge's refusals, the two matters were
heard together at the request and on consent of the parties. The parties also
agreed to one set of combined reasons being issued to address both proceedings.
Therefore, these reasons are consolidated into one decision and a copy will be
placed in each file.
II. Facts and Decision
3 The
Applicants entered Canada and became permanent residents on December 28, 2006.
4 Vladislav
Cheburashkin applied for Canadian citizenship on August 20, 2010 (1330 days
after his arrival in Canada). His wife, Liudmila Cheburashkina, applied for
citizenship on April 05, 2010 (1195 days after her arrival).
5 Both
Applicants made it clear that they were slightly shy of meeting the 1095 day
residency requirement within their citizenship applications, and subsequent
residence questionnaires, but in both cases, (i) having over 1000 days of
physical residency in Canada, and (ii) evidencing strong attachment to Canada,
including Canadian jobs, tax filings, real estate acquisitions, and two
Canadian-born children.
6 At
their respective hearings in October and November of 2013, the Applicants
signed, at the request of the Judge, consents authorizing disclosure of the
history of their entries into Canada, known as an Integrated Customs
Enforcement System [ICES] report, which is an entry log from the Canada Border
Services Agency [CBSA].
7 The
applications were both rejected on November 27, 2013 [Decisions], after the
Judge applied a strict residency test requiring 1095 days in Canada of the 1460
possible (i.e. 3 full years in Canada out of a window of 4 years).
8 In
his Decisions, the Judge found that entrances listed on the ICES reports did
not match the absences listed on the residence questionnaires submitted by the
Applicants.
9 As
is often the case with citizenship cases where one has to look back at travel
which can predate the application forms, and ultimately the citizenship
interview, by several years, the precise number of days absent from Canada was
not entirely clear, given the various residency numbers cited by (a) the
Applicants in their original applications, (b) subsequently in their residence
questionnaires, (c) Citizenship and Immigration Canada [CIC] in its
calculation, and (d) the Judge in his Decisions and background notes.
10 Specifically,
with respect to Mr. Cheburashkin, the Judge found that "absences re [sic]
calculated would be 700+ days". Neither the Decisions nor the handwritten
notes provide specificity regarding the calculation, which was over 400 days
more than Mr. Cheburashkin's statement of absences (296 days).
11 With
respect to Mrs. Cheburashkina, the Judge also arrived at a differential of over
400 days as between his calculation of her absences (629 days) and Ms.
Cheburashkina's submission of 177 days.
12 The
Judge further stated that CBSA's ICES report listed five entrances to Canada
during the relevant period, and found that these entrances did not match Mrs.
Cheburashkina's account of her entrances. In fact, as pointed out by counsel,
only one of the five absences listed by CBSA does not match what Mrs.
Cheburashkina had provided. Indeed, she listed more entrances to Canada in her
residency lists than CBSA did in its ICES report.
13 At
neither hearing, based on the Applicants' affidavits and on other evidence
presented to the Court, were the Applicants provided with an opportunity to
explain or address these significant discrepancies.
14 In
applying the "physical presence" test described in Re Pourghasemi, [1993] F.C.J. No. 232, the
Judge determined none of the residency periods would satisfy the 1095 day
residence requirement of the Act.
The Judge refused both applications, and those denials form the basis of these
applications to appeal the two Decisions.
15 The
Judge also declined, in both Decisions, to make a favourable recommendation for
a discretionary grant of citizenship pursuant to s 5(4) of the Act.
III. Issues and Submissions
16 The
issues raised are twofold, namely:
Did the Judge breach the
principles of procedural fairness, by relying on extrinsic evidence, failing to
disclose the ICES report and/or raise the residency concerns with the
Applicants?
17 The
Applicants submit that the Judge's failure to disclose the ICES reports was a
breach of procedural fairness and natural justice, because it precluded them
from addressing the Judge's concern that the Applicants may have been out of
the country for a period of over 700 and 629 days, respectively.
18 In
so doing, the Applicants submit that the Judge both failed to explain the
discrepancy between the days out of the country provided by the Applicants'
residency questionnaires and the conclusions he garnered from the ICES reports,
and more importantly, to provide an opportunity for the Applicants to address
the significant differentials between those two sources.
19 The
Applicants further point out that if a decision-maker is to rely on extrinsic
evidence, which they allege the ICES reports were, then the details of the
reports and the concerns elicited from the said reports should have been raised
directly with them.
20 By
citing the diverging physical residency periods in Canada, the Applicants argue
that the Judge implicitly made negative credibility findings against them.
21 The
Applicants further assert that the failure to advise them which test was being applied
to the adjudication of the matter, was a breach of procedural fairness.
22 In
response, the Respondent argues that there was no breach of procedural fairness
or natural justice in any respect, because the Applicants had every reason to
know that residency would be at issue in a citizenship application due to the
residency part of the original application, and subsequent residence
questionnaires. Furthermore, the ICES reports could have been accessed by them
independently.
23 The
Respondent denies that there were any negative credibility findings in the
Decisions. Rather, the Judge was confronted with competing periods of residency
and none of these periods met the required threshold of the Act.
24 The
Respondent further denies any procedural fairness breach occurred through the
Judge's failure to advise in advance that he would apply the Pourghasemi residency test.
Did the Citizenship
Judge err in applying the Pourghasemi test for citizenship instead of the Koo
test?
25 The
Applicants plead that the failure to apply the Koo test was unreasonable, given the circumstances, namely, that had the
Judge received clarification on the extent of the absences, and found that the
applicants indeed were in Canada for the periods they asserted, then he might
have picked the Koo test and come
to the conclusion that they had centralized their mode of living in Canada,
through the qualitative Koo
analysis.
26 The
Respondent counters that the Decisions were entirely reasonable because the
Applicants would not meet the statutory criteria under any of the residency
periods provided to the Judge by the Applicants, or the ICES reports, i.e. none
of the various periods met statutory requirement of 1095 days. The Respondent
further submits that it was completely open and reasonable for the Judge to
apply whichever citizenship test he chose.
IV. Standard of Review
27 Where
procedural fairness is concerned, a standard of correctness must be applied:
See Mission Institution v Khela,
2014 SCC 24 at para 79; Canada (Minister of Citizenship
and Immigration) v. Takla, 2009 FC 1120.
28 The
citizenship test applied and the Judge's assessment under that test, are to be
reviewed on a reasonableness standard: Gavriluta v.
Canada (Citizenship and Immigration), 2013 FC 705 at
para 27.
V. Analysis
Did the Judge breach the
principles of procedural fairness, by relying on extrinsic evidence, failing to
disclose the ICES report and/or raise the residency concerns with the
Applicants?
29 It
has been held by this Court on numerous occasions that when an immigration
official relies on extrinsic evidence without giving the applicant a chance to
respond, a breach of procedural fairness occurs. Extrinsic evidence is evidence
that the applicant is unaware of because it comes from an outside source: See Dasent v Canada (Minister of Citizenship and Immigration), [1995] 1 FC 720 [Dasent] at para 23; Feng v Canada (Citizenship and
Immigration, 2014 FC 386 [Feng] at para 15.
30 Dasent and Feng also stand for the proposition that one must consider whether the
applicant had the opportunity to deal with the evidence, if procedural fairness
is to be observed.
31 In
the present cases, the Judge relied on ICES reports which the Applicants
consented to and could have accessed on their own initiative. It is not the
Court's view that ICES reports, which are a common feature of citizenship
analyses, and which applicants may apply for on their own accord, constitute
extrinsic evidence.
32 The
more significant question with regard to procedural fairness raised by the
Applicants is whether by relying on the ICES reports and thereafter failing to
give the Applicants the right to comment on the negative residency assessment
arising from these reports, or provide a fair opportunity of correcting or
contradicting that assessment before making his decision, the Judge breached
the principles of procedural fairness per Muliadi v
Canada (Minister of Employment and Immigration), [1986]
2 FC 205 (FCA), and its progeny.
33 The
Applicants take particular issue with the fact that the Judge concluded that a
fundamental differential existed between their evidence regarding days resident
in Canada, and their residency calculations (a delta of well over 400 days for
each of the two cases).
34 Nothing
was brought to the attention of the Applicants about the discrepancy based on
their uncontradicted affidavit evidence. Mr. Cheburashkin, for instance, states
in the relevant paragraphs of his affidavit:
On November 4, 2013, I
appeared for an interview with a citizenship judge. The judge asked me
questions about my residence in Canada. At the interview, the citizenship judge
asked me to sign a document regarding my history of entries to Canada thus
giving permission to the Canada Border Services Agency to disclose the details
of my entries. I did not hear anything further from the citizenship
judge.
...I have read the
reasons for refusal provided by the citizenship judge. The citizenship judge
states that the report of entrances into Canada received from the Canada Border
Services Agency lists entrances that do not match what I stated in my
application and the residence questionnaire. The citizenship judge did not
disclose the report from the Canada Border Services Agency to me and never gave
me an opportunity to address his concerns.
35 Ms.
Cheburashkina provides similar evidence in her Affidavit regarding the lack of
any opportunity to address the residency issue.
36 The
problem with the Applicants' position regarding the impugned Decisions is
twofold.
37 First,
the Applicants were aware that residency was an issue, given the fact that
there already were discrepancies between the citizenship application and the
residency questionnaires and neither of these met the statutory test.
38 They
were aware of these discrepancies going into the citizenship hearings. The fact
that the Judge then asked for ICES consents surely signalled to the Applicants
that residency was to be an issue, even if it had not been the subject of
discussion at the hearings.
39 With
respect to the Applicants' position on credibility, the Judge does not end up
basing his decisions on credibility issues arising from the various residency
periods. Rather, he simply states that the statutory residency requirement per
the Pourghamesi test has not been
met in any of the various residency periods on the Record.
40 In
other words, the Decisions turned on the failure to meet the statutory test of
1095 days, no matter which version of the residency facts the Judge chose to
believe. Indeed, the Judge does not identify which residency total he believes
in his Decisions; he simply says that the Pourghamesi test has not been met.
41 The
Applicants point to Justice Manson in Abdou v Canada
(Citizenship and Immigration), 2014 FC 500 [Abdou], for the proposition that the Judge
unfairly failed to provide the opportunity to counter credibility concerns.
42 In
Abdou, there were differing
accounts of residency as between the application (34 days absent) and the
residence questionnaire (354 days absent), and unlike in the present situation,
both of those two Abdou residency
periods would have met the statutory test, if believed. The Citizenship Judge
in Abdou pointed out credibility
concerns regarding Mr. Abdou, but according to the applicant's affidavit
evidence in that case, did not question him on these concerns during the
citizenship interview. Justice Manson relied on Johar v
Canada (Citizenship and Immigration), 2009 FC 1015 [Johar], in coming to the conclusion that there
had been procedural fairness gaps in failing to provide the applicant with an
opportunity to respond.
43 In
Johar, like in Abdou, the applicant maintained he had met the
physical residency requirement.
44 Justice
Manson decided Donahue v Canada (Citizenship and
Immigration), 2014 FC 394 [Donahue], one month before he decided Abdou. The facts of Donohue
are similar to the instant cases, because differing versions of residency all
fell short of the statutory requirement. In Donohue, the applicant also challenged the selection of the citizenship
test, as well as procedural fairness in the face of credibility concerns and
physical residence discrepancies.
45 Justice
Manson found in Donohue that in
the circumstances of a clear failure to meet the strict physical presence test,
which was open to the Citizenship Judge to choose based on significant
jurisprudence, ambiguity around credibility is immaterial.
46 The
same principle applies here: it was open to the Judge to choose which test to
apply, and there is nothing wrong with choosing the Pourghasemi test.
47 Once
that test was chosen by the presiding Citizenship Judge, and once that test was
identified by the Judge in his Decisions, any credibility concerns - if there
were indeed any - became moot upon the application of the facts to the law. In
short, even the best evidentiary scenario of the Applicants' number of days in
Canada did not meet the standards of the Pourghasemi test.
48 There
is no evidence on this Record that any undertaking or indication was made with
respect to the type of test that was going to be applied, as there was in Qin v Canada (Citizenship and Immigration),
2014 FC 846.
Did the Citizenship
Judge err in applying the Pourghasemi test for citizenship instead of the Koo
test?
49 As
stated above, the Court has been clear in numerous cases that it is up to the
Citizenship Judge which test to choose: See Knezevic v.
Canada (Citizenship and Immigration), 2014 FC 181; Navidi v Canada (Citizenship and Immigration), 2008 FC 408.
50 There
are recent cases supporting the rationale of Justice Rennie in Martinez-Caro v Canada (Citizenship and Immigration), 2011 FC 640, which comprehensively reviewed the history of the Pourghasemi strict residency test, and
supported its reasons: See Donohue and Huang v Canada (Citizenship and
Immigration), 2013 FC 576.
VI. Conclusion
51 This
Court finds that it was reasonable for the Citizenship Judge to select and
apply the Pourghasemi test.
JUDGMENT
THIS COURT'S JUDGMENT is that the applications in T-89-14 and T-91-14 are dismissed and a copy of
these Reasons shall be placed in each Court file. No costs shall be awarded.
DINER J
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